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West Virginia v. Anthony Kennedy et al.

9:49 AM, Nov 20, 2009 • By HANS A. VON SPAKOVSKY
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Last week, the West Virginia Supreme Court issued a well-deserved slap in the face to a majority of the U.S. Supreme Court, which all too often makes up the law out of whole cloth to meet its latest view of what is socially and politically correct.

Last week, the West Virginia Supreme Court issued a well-deserved slap in the face to a majority of the U.S. Supreme Court, which all too often makes up the law out of whole cloth to meet its latest view of what is socially and politically correct. In June, the Court issued what may have been one of the worst opinions of the term in Caperton v. Massey Coal Company, a case I wrote about previously. In a 5 to 4 decision, Justice Anthony Kennedy joined with the liberals on the Court to opine that if there was an appearance of possible bias by a judge, it violated the right to a fair trial under the Due Process Clause of the Fourteenth Amendment to the Constitution. It didn't matter that there was no actual or real bias in the case, no financial impropriety, or that even the Court's analysis of the "appearance" of bias was completely wrong. Instead, the majority conjured up a vague standard so broad and undefined that Chief Justice Roberts said in his dissent that it provides "no guidance to judges and litigants about when recusal will be constitutionally required." The end result of this decision was that West Virginia Chief Justice Brent Benjamin was forced to recuse himself from a case involving a $50 million judgment against Massey Coal. Benjamin had been part of a three-judge majority that had overturned the $50 million judgment, with two other judges of the West Virginia Supreme Court dissenting. This was actually unusual--Benjamin had voted against Massey Coal on 15 prior occasions. Benjamin had been elected to the court after receiving the endorsement of almost every newspaper in the state. He defeated the incumbent, a judge who had refused interviews, ignored debates and gave a speech that the media characterized as "deeply disturbing." But Benjamin had received a (shudder) $1,000 contribution from the owner of Massey Coal, who had also spent large sums of money in a totally independent campaign to defeat the incumbent, a well-known ally of the plaintiffs' bar which itself spent huge sums trying to get him reelected. After the U.S. Supreme Court's decision in June, the case was remanded to the West Virginia Supreme Court. With Benjamin disqualified from the case and another West Virginia judge sitting in his place by special designation, the West Virginia Supreme Court overturned the $50 million judgment against Massey Coal last week again, but this time by a 4 to 1 vote. This is exactly what one would expect since no one had ever presented any evidence in the U.S. Supreme Court case--and the majority opinion certainly did not point to any at all--that there had been any factual or legal errors in the original decision that was the basis of the "bias" claim. So once again, we have a bad decision from the Supreme Court establishing a new legal right that does not actually exist in the Constitution that will live on forever, causing far-ranging and damaging consequences that the majority failed to adequately anticipate. It is an expansion of a "constitutional mandate in a manner ungoverned by any discernable rule." Just more evidence of how important Supreme Court nominations are and how bad the liberal justices can be on far too many cases.